12/31/2014

On Friday, December 19, 2014, EPA said that it will regulate coal ash as a “solid waste” rather than as “hazardous waste.” Significantly, the rule does NOT APPLY to coal ash placed in active or abandoned surface or underground coal mines. EPA will work with the Interior Department to ensure proper placement of coal ash at mine operations.

A link to the rule and associated information posted by EPA appears here. The final rule includes the following requirements:

Structural integrity requirements to reduce the risk of catastrophic failure (requirement starting six months to two years after rule publication)

Inactive units – inactive units complete closure (dewater and install final cover) within three years of publication of rule then they are not subject to any additional requirements

Closure and post-closure requirements (18 months after rule publication): the rule establishes specific time frames for beginning and completing closure and authorizes extensions due to circumstances beyond the facility’s control. CCR units must “close” when one of three triggers occurs: 1) when a unit fails to meet technical criteria for preventing contamination of groundwater, meeting minimum structural integrity factors or failing to show it can operate safely despite not meeting location restrictions; 2) when a CCR unit receives the known final waste shipment or removes the know final volume of CCRs from the unit for the purposes of beneficial use; and 3) the rule establishes a presumption that CCR units that have not received ash for two years must initiate closure.

Beneficial use – the rule does not regulate CCRs that are beneficially used, and provides a definition of “beneficial use” to distinguish between use and disposal.

This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author, click here.